Curious twist on two CCA requests-they are taking me to Court!

[joneshousehold]

I am told that two days off alcohol will help save my liver but that could be a vicious lie just to stop the masses from enjoying too much wine. The team are the Rams - back to the top of the Championship (sorry Norwich fans!). Even better the Forest got beaten too (not sorry Forest fans - it was the mighty Doncaster for goodness sake!)

 

Sorry Laiste for hijacking, hope you are back in positive mode tomorrow

[Cornucopia]

I am told that two days off alcohol will help save my liver but that could be a vicious lie just to stop the masses from enjoying too much wine. The team are the Rams - back to the top of the Championship (sorry Norwich fans!). Even better the Forest got beaten too (not sorry Forest fans - it was the mighty Doncaster for goodness sake!)

 

Sorry Laiste for hijacking, hope you are back in positive mode tomorrow

 

It SO is a vicious lie! I recommend taking a tablet of Milk Thistle every day, apparently it "supports" the liver, that throws up an odd picture!!!! I doubt anything could support mine, it's like an old boot I shouldn't wonder!! I like several hundred bottles of wine at the weekend!

 

Oh dear, I'm afraid I support the Arsenal, but well done anyway!

 

Yes, apologies Laiste for hijacking thread, mind you, a little light banter never hurt anybody!

 

Onwards and upwards!!

[Laiste]

Hi Guys,

 

I am so heartened by your comments! This is just a battle, it's not the war! I can be a bit hot headed where injustice is concerned, but after due consideration of all the facts I generally reach a reasoned conclusion/decison! The wine is helping in that regard! If we were all close geographically I would have organised an alcohol induced celebration/commiseration gathering! We could then have bitched about HFC and every other company till hell froze over!

 

For momentary depression, homemade mexican enchiladas is excellent, so if any of you are in the area, drop round in about 1hour 30 mins for

some! I'll have the wine chilled waiting for you also!!!

 

Laiste.

[KJD]

Subscribing to thread - keep going Laiste, you're an inspiration.

 

Corn... a fellow G:) NER! Fingers crossed (n everything else) 4 tomorrow!

[Laiste]

Don't worry, I don't think any of you are hijacking my thread at all, feel free to say whatever! I think levity is required given the news today! Talk about liver disease at will.....!

 

Laiste.

[Cornucopia]

Subscribing to thread - keep going Laiste, you're an inspiration.

 

Corn... a fellow G:) NER! Fingers crossed (n everything else) 4 tomorrow!

 

LOL! KJD!! Quite!!! I will be passing the Emirates on the train into work tomorrow, so will give them a wave from you!

 

Laiste, enjoy your enchilladas! Tomorrow's another day girl!!

[The Lantana]

Cornucopia, wave to me too, I live close to the mighty Emirates. KJD, who Goons wins! (With thanks to Laiste for allowing this brief hijack).

 

Back to business. From the other side's perspective they can hardly be out on the champers tonight. They've been told (if I understand things properly) that they're not getting costs. I think that's significant, so all they've really achieved for certain today, is the right to take a case to trial.

 

Regards

 

Lantana

[Cornucopia]

Cornucopia, wave to me too, I live close to the mighty Emirates. KJD, who Goons wins! (With thanks to Laiste for allowing this brief hijack).

 

Back to business. From the other side's perspective they can hardly be out on the champers tonight. They've been told (if I understand things properly) that they're not getting costs. I think that's significant, so all they've really achieved for certain today, is the right to take a case to trial.

 

Regards

 

Lantana

 

Oh what a small world! My Aunt lives off Blackstock Road in Highbury by Joan of Arc School and I bloody hate going through Drayton Park, the lights always go out on the train, but because we're British, we steadfastly continue to read our books and papers in the dark without flinching! LOL!

However, I will wave at you too Lantana!!

 

And.....as you say....back to business, I personally think that their loss of costs is a significant victory for the consumer. Who thinks they will withdraw prior to the trial?

[The Lantana]

I know Blackstock Road, I ate a kebab from a shop there once and I know Joan of Arc school too, and not forgeting the church!

 

I think there's a chance they'll pull out but let's not count on that. Laiste, review the Egg defence. I suspect Egg quit for a number of factors (charges, ppi etc.), but there may be some nuggets in that paperwork. Have you mentioned s85 at all?

 

Regards

 

Lantana

[m55dlc]

Hi, just subscribing, Waiting with bated breath on the legibility issue.... Good luck!

[StormWarrior]

Doubt the "legibility issue" will have any effect whatsoever.

If they show that you were a party to an agreement, in that you paid sums to them, or recieved sums from them, they will have shown on the "balance of probabilities" that you entered into a contract with them.

[joneshousehold]

Doubt the "legibility issue" will have any effect whatsoever.

If they show that you were a party to an agreement, in that you paid sums to them, or recieved sums from them, they will have shown on the "balance of probabilities" that you entered into a contract with them.

 

It's a specific part of the Consumer Credit Act hence the reason it's included in this argument. The balance of probabilities argument applies to most contracts but is specifically overridden where the contract is caught by CCA

[The Lantana]

I agree with joneshousehold. The balance of probabilities can easily show monies were advanced - but on what basis?

 

Regards

 

 

Lantana

[FANTASY CHARGES]

Laiste - when did you receive the CCA copy ? I was trying to find out going through the thread but can't see it.

 

and what is the date on the cca copy please ?

[joneshousehold]

I agree with joneshousehold. The balance of probabilities can easily show monies were advanced - but on what basis?

 

Regards

 

 

Lantana

 

Actually Lantana I think the Courts can construct a contract in most cases from the actions of the parties so normally the using of a card or borrowing of money would constitute an agreement. This is because contracts do not normally have to be written but can be verbal or implied. If you agree to buy something and give the money, there is no written contract but your actions have shown the agreement was in existence. With consumer credit contracts however the Act is very specific - the agreement must be in writing, must have certain specified information in the specified form, must be legible etc etc, providing that agreement is within the terms of the Act (and I think this is known as a regulated agreement and is usually for credit between £50 and £25,000 although I think the limits are changing or have changed). It in fact overrides the normal contract law in those respects.

 

I suspect that a company credit card account rather than one held by an individual does not have the protection of the CCA and so a contract could be established in court by the actions of the parties.

 

Sorry if you knew this already, I wanted to make sure StormWarrior was clear about what we meant.

[bfb]

the narkiness of the judge might relate to the increase in numbers of people fighting back and his having to spend time on stuff which previously went through a rubber stamp exercise -A natural human reaction. Properly constructed argument based on statute will prevail There is less room for manouver for HFC and the sytem under the CCA than if merely relying on common law principles so the outcome should be less capricious and if it is more open to argument

[The Lantana]

joneshousehold, you make good points. I actually meant 'on what terms', i.e. what interest rate, fees etc? I slipped 'basis' in by error.

 

Regards

 

Lantana

[joneshousehold]

Ah, I see! I always live in fear that I am telling grannies how to suck eggs and all that. Now I don't mean that you are a granny either....I think I had better stop digging!

[mcuth]

Ack, sorry to hear you lost that battle Laiste, but you've not lost the war - onwards and upwards, up & at 'em at the next hearing

 

Cheers

 

Michael

[Laiste]

Hi everyone,

 

Just to clarify some points in relation to the agreement. I requested it last year and from what I recall (without checking paperwork) they were two months late in providing it.

 

What they furnished was an application form, 90% of the details of which are unreadable. They also sent completely unreadable t&c's, to accompany the app form. Do bear in mind that when this process started I knew a lot less than I do now! In terms of form and content, the application does not conform to the requirements of the Act and the regulations made under the Act.

 

Given that the claimants will be filing an amended counter-claim and defence, we are also doing the same. So I will be able to include the details re form and content that weren't included 1st time round. There is no way on earth the app form is going to pass itself off as the agreement!

 

Regards,

 

Laiste.

[Guest willowb]

Subscribed....you are an inspiration Laiste! it was a pleasure reading your thread, thank you:) .

 

Sorry about the set back you had re the CCA issue, it sounds like you were fighting a losing battle from what I can gather about the Judge's attitude! You certainly gave it your best shot and for such an intelligent and confident person, I'm suprised that it went that way.

 

Positive thoughts for the next time! you can do no more than your best and your best seems much more than good enough;)

 

Well done

Wxxxx

[Laiste]

Hi Karnevil,

 

I have spent many hours (aren't I lucky) studying the requirements for running account credit agreements, so I know categorically that the app form in no way conforms to the legal requirements of the CCA. I was simply saying that when this all started I was a lot less knowledgeable than I am now. I have no idea as yet what their amended claim will say.

 

Regards,

 

Laiste.

[Laiste]

Hi Willowb,

 

Thank you for your really lovely comments, they are really appreciated!

 

Not getting their case chucked out was a set back, but after a lot of wine on Tues evening and a hangover yesterday, we're back on track! We are still ruminating over an appeal, so we may well be revisiting this issue....I'll keep you posted!

 

I'm glad you're enjoying the thread, it's like a soap opera, isn't it? Thanks for taking the time to read the thread, it takes a while......!

 

Regards,

 

Laiste.

[Laiste]

Hi Karnevil,

 

I am somewhat baffled by your post. Where did you glean the impression that I am just going to trial over the enforceability of the contract? To the best of my recollection I have never said that's the only issue. The Judge made comments to the effect that it is only the enforceability point that is at issue, which isn't actually true anyway. He erred in his comments as there are a variety of matters to be settled, not least of which was HFC's right to terminate the contract having issued a Default Notice which contained penalty charges, which made it legally invalid.

 

The illegible application form is by no means a minor issue. If I only had that matter to go to Court over I wouldn't be fretting. An application form is never going to stand up as the agreement! Even if hypothetically it did, how are they going to prove what has been agreed and with whom, when you can't read it? That would be a good trick if they could pull it

off!

 

Regards,

 

Laiste.

[The Lantana]

Greetings,

 

Insist on seeing the original agreement in court, do not accept a copy.

 

I think the way it works is....

 

1) Is there a properly executed agreement (with reference to the original) under the act and containing all prescribed terms, YES or NO?

 

2) If NO, then under 'old boy network' (OBN) rules HFC get a second bite at the cherry. Here the judge can find an improperly executed agreement to be valid; has Laiste signed a document with an interest rate, a credit limit (or how one might be determined), and a repayment schedule. If all three are present on a signed document that will satisfy many Judges.

 

3) No agreement, case closed.

 

4) If he finds an agreement compliant under the act, has it been breached, YES or NO?

 

Here I'd look to argue s78, s85, s87 etc., and was there any reference to charges on the signed agreement (not in the T&C's)?

 

However the Judge at this point may well be thinking it's time for his tea and sticky's in their Lordships common room, so his mind will be substantially made up.

 

This is where clever and frequent (but not too frequent) use of the word 'appeal' needs to be used during verbals. IMHO, nothing is more likely to keep a career minded junior Judge more interested in a case than the realistic prospect of being appealed by a tenacious litigant - if he get's it wrong. This fear probably keeps some of them awake at night!

 

5) If he finds an agreement, but not one complying under the act, I think he has a fair bit of discretion but should take into account who's fault and why the agreement is 'non compliant' - it could go either way, or half way.

 

Remember, when thrown the 'gauntlet' of court action, don't make it easy for the Judge to find against you. That said, if they have an original that complies with 1) or 2) above I'd definitely be interested in negotiations.

 

JMHO

 

Regards

 

 

 

Lantana

 

PS I can't believe I've been a CAGer for just over a month now, and written less than 150 posts and yet can come out with stuff like this!